95 F.

3d 42

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of unpublished dispositions is disfavored except for establishing
res judicata, estoppel, or the law of the case and requires
service of copies of cited unpublished dispositions of the Fourth
Circuit.
UNITED STATES of America, Plaintiff-Appellee,
v.
Johnny Lataurus HARRIS, Defendant-Appellant.
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
Donnell HART, Defendant-Appellant.
Nos. 95-5637, 95-5638.

United States Court of Appeals, Fourth Circuit.

Argued April 5, 1996.
Decided Aug. 27, 1996.

ARGUED: Frank Salvato, Alexandria, Virginia, for Appellant Hart;

Drewry Bacon Hutcheson, Jr., Alexandria, Virginia, for Appellant Harris.
Morris Rudolph Parker, Jr., Special Assistant United States Attorney,
Alexandria, Virginia, for Appellee. ON BRIEF: Helen F. Fahey, United
States Attorney, Alexandria, Virginia, for Appellee.
Before HALL, NIEMEYER, and HAMILTON, Circuit Judges.
OPINION
PER CURIAM:

Donnell Hart and Johnny Lataurus Harris, inmates at the District of Columbia's
Lorton prison in Virginia, appeal their convictions for assaulting a correctional
officer; Harris also appeals his conviction for possession of a weapon. Their
sole assignments of error concern the district court's refusal to give two
proffered instructions to the jury. We find no error, and we affirm.

* The testimony at trial showed the following: On February 5, 1995, a

disturbance began on the appellants' tier when inmates complained about not
being able to get showers. Inmate Watson was sprayed with mace by
correctional officers after he threatened to burn the tier down, and Hart was
sprayed as well when he shouted for the officers to stop. The officers
eventually entered the tier in riot gear and began the "extraction" of some
inmates from their cells.

Hart testified that he was pushed down on his bed by shield-wielding officers
during the initial extraction attempt:

4
[A]nd
when they removed the shields the officers that was--they just was--you
know, like not really hitting, but just you know, bending my arms out and you know,
hitting my head against the, you know, around the cell, it's like made of metal, iron,
was hitting me against the--just like, you know, tussling around.
5

Inmate Adams chased the officers away with a homemade shank. When Officer
Fuller returned to see if the inmates would leave the tier, he was stabbed in the
back by Adams.

Hart threw batteries at the officers when they re-entered the tier for the fifth
time to continue the extraction process. As Harris was being removed from his
cell, he punched Officer Rivera several times. Several inmates testified that
Harris was beaten and kicked by the officers as he was being removed from the
tier, and one inmate testified that Harris was hospitalized as a result. Harris did
not testify. A videotape showed Hart holding a shank during deliberations to
end the uprising.

Hart and Harris were indicted on a variety of charges, including rioting and
assault on a correctional officer. 1 The inmates' defense was that they were in
fear for their safety because the officers were beating the inmates during the
extraction process. Hart admitted throwing the batteries as the officers began
moving toward him. He also admitted picking up a shank for self defense,
though he did so only after the officers were called off the tier.

The district court refused to give a self-defense instruction or an instruction that

a law enforcement officer's testimony is entitled to no greater consideration
than that of an "ordinary citizen." Harris was found guilty on a single assault
charge and not guilty on a charge of impeding a correctional officer. Hart was
convicted of the assault and possession of a shank, and he was found not guilty
of three other counts. In this consolidated appeal, they contend that the trial

court's refusal to give the self-defense and credibility instructions constitutes

reversible error.
II
9

* The inmates offered the following instruction:

10
There
has been evidence that the defendant acted in self-defense. The law recognizes
the right of a person who is not the aggressor to stand his ground and use force to
defend himself. However, he may use only such force as is reasonably necessary to
defend himself or another person against the imminent use of unlawful force.
11 are reminded that the burden of proof remains at all times on the government
You
and that the defendant need not call any witnesses, nor offer any evidence. Thus,
before you may convict, you must find beyond a reasonable doubt that the
government has satisfied its burden of proving that the defendant did not act in selfdefense. Therefore, if you have a reasonable doubt whether or not the defendant
acted in self-defense, your verdict must be not guilty.
12

The government agrees that this instruction was proper in form. See United
States v. Black, 692 F.2d 314 (4th Cir.1982). It contends, however, that there
was insufficient evidence to warrant such an instruction being given.

13

The general rule is that "a defendant is entitled to an instruction as to any

recognized defense for which there exists evidence sufficient for a reasonable
jury to find in his favor." Mathews v. United States, 485 U.S. 58, 63 (1988);
United States v. Sloley, 19 F.3d 149, 153 (4th Cir.) (defendant entitled to any
instruction for which there is an "evidentiary foundation"),2 cert. denied, 114
S.Ct. 2757 (1994).

14

The issue is whether there was sufficient evidence for a jury to find that the
appellants reasonably feared that the officers were using or were about to use
unlawful force against each of them, and, if so, whether the resistance used-punches by Harris, battery throwing by Hart--was "reasonably necessary" to
defend themselves.

15

The inmates' argument is that there was certainly evidence from which a
rational jury could have found that the officers were systematically beating
inmates, that the force used by the officers was excessive and therefore
unlawful, that a reasonable inmate in Hart's or Harris's shoes would have been
in fear of imminent harm, and that the steps taken were reasonable. After a
careful examination of the record, we find no evidentiary basis for the

instruction with regard to either appellant.

B
16

Harris was convicted of assaulting Officer Rivera. Officer Rivera clearly had
the legal right to remove Harris and the other inmates from their cells and to use
whatever force was necessary to do so. Rivera testified that Harris hit him with
"several uppercuts" when Rivera initially entered the cell. While there was
evidence that Harris was beaten, there is nothing to refute Officer Rivera's
testimony that Harris was the initial aggressor. Except for Rivera, no
eyewitnesses to the initial encounter in the cell testified. Harris did not testify,
so we are unable to tell what effect the presence of officers in riot gear outside
his cell may have had on him. Absent an evidentiary basis for finding that
Harris was reasonably afraid that he was in imminent danger of harm or that he
was anything but the initial aggressor, there is simply no basis for finding that
he acted in self defense. Therefore, we find no error in the court's refusal to
give the instruction with respect to him.

C
17

Hart was convicted of assaulting a correctional officer, in violation of D.C.Code

22-505(a), a lesser included offense of count 7 of the indictment, assault with
a dangerous weapon, in violation of 22-505(b). The assault consisted of
throwing batteries at the officers as the extraction process was underway. The
evidentiary basis for the proffered self-defense instruction is lacking for a
number of reasons.

18

First, Hart was at the end of the tier between cells ten and twenty, while his
targets--the officers--were at cells one through four when the batteries were
thrown. The danger of harm, then, was not imminent. Second, if the level of
force being used by the officers was unlawful, there is nothing to suggest that
such force was used on nonresisting inmates. The assault for which Hart stands
convicted involved the throwing of batteries at the officers when they entered
the tier for the fifth time. Up to that point, he had steadfastly refused the
officers' valid orders to vacate the tier voluntarily, and nothing suggests that
any force would have been used had Hart left the tier without resistance. Hart
was not entitled to "stand his ground." See United States v. Jennings, 855
F.Supp. 1427, 1436 (M.D.Pa.1994) ("As an inmate, Jennings was required to
submit to the lawful commands of corrections officers, and the use of physical
force to resist such commands is not justified."), aff'd, 61 F.3d 897 (3rd
Cir.1995) (TABLE, No. 94-7370). Before he would be entitled to resort to force
in such circumstances, Hart would have to adduce evidence that force was his

only reasonable option. See Holt, 79 F.3d at 17 ("[W]e think it reasonable to

require of defendants seeking a self-defense instruction that they first proffer
evidence demonstrating a lack of reasonable alternatives to committing the
crime."). The refusal to give the instruction as to Hart was not error.3
III
19

In United States v. Evans, 917 F.2d 800, 806 (4th Cir.1990), the trial judge
refused to allow the defense to question the jury panel during voir dire about
whether they would give special credence to the testimony of police officers
because of the officers' positions. We held that this was reversible error
because it denied the defendant a fair trial, and we remanded for a new trial.
Hart and Harris attempt to apply the same analysis to the jury-instruction phase
of the trial.

20

We are unconvinced that the rule in Evans should be expanded to include jury
instructions. During voir dire, the trial court did ask the venire whether they
could give the defendants as fair a trial as someone who was not an inmate. The
appellants failed to request any additional questions. Accordingly, we find no
abuse of discretion in the district court's refusal to give the credibility
instruction. See United States v. Russell, 971 F.2d 1098, 1107 (4th Cir.1992)
(decision to give or refuse instruction within court's discretion), cert. denied,
113 S.Ct. 1013 (1993).

21

AFFIRMED.

Adams and Watson were also indicted. Adams pleaded guilty to two charges of
assault with a dangerous weapon. Watson went to trial with the appellants and
was convicted on one assault charge

With regard to Hart's conviction for possession of a shank, we recently noted in

United States v. Holt, 79 F.3d 14 (4th Cir.1996), petition for cert. filed, (June
25, 1996) (No. 95-9448), that "a case may exist in which a defendant could
raise self defense as a justification for possessing a weapon in prison ...,"
although, under the facts presented in that case, we held that no such
justification existed. In Hart's case, he was observed holding a shank during
negotiations with prison officials to end the disturbance. Like Holt, Hart was in
no imminent danger of bodily harm at that point, and, accordingly, we hold that
self defense was not an available defense as to the shank charge

The following instruction was given at the appellants' trial:

[I]f the officers used more force that they reasonably believed necessary under
the circumstances, or their acts towards a defendant were prompted by some
motive other than performance of their official duties then you may find that a
defendant acted with justifiable or excusable cause if he resisted, provided that
he too used no more force in resisting that he reasonably believed to be
necessary under the circumstances. In United States v. Lewis, 53 F.3d 29 (4th
Cir.1995), we held that a refusal to give an instruction is reversible error only if
the instruction (1) was correct, (2) was not "substantially covered" by the
court's charge to the jury, and (3) dealt with some point in the trial so important
that failure to give the requested instruction seriously impaired the defendant's
ability to conduct his defense. The government does not contend that this
instruction "substantially covered" appellants' defense of self-defense.